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He Said, She Said: Admission of Hearsay Statements Regarding Child Sexual Abuse in Custody Cases: Part 7 of 12 Parts

Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

           For the next several installments of our practical series for family law attorneys in Piedmont Triad area, we will be reviewing the admission of hearsay statements through the business records exception, Rule 803(6). In this installment, we will consider the case of In re S.W., 625 S.E. 2d 594 (N.C. App. 2006).

We have all been there; you sent out the subpoenas to the doctor, the nurse, the social worker, the therapist, the detective, and anyone else you can think of who can testify about the abuse. Lo and behold on the day of the hearing, not a single witness shows up, but luckily you have already got your hands on some records that detail the incident. What is the attorney to do? The case of In re S.W. is extremely helpful when an attorney is unable to get a witness into court, and there are written records of the events.

In re S.W. involves a termination of parental rights case and the admission of various exhibits which contained hearsay statements.  The child, in this case, was initially removed from the mother’s custody after being found out in the rain while the mother was buying illegal narcotics in October of 2001. The child was determined to be neglected but was reunified with the mother. The mother then left the child unattended at the homeless shelter where they were both staying for over a day and a half on Christmas Eve. The Department of Social Services removed the child again from the mother’s custody, and the child was placed in foster care. The Department of Social Services then filed their Petition to Terminate Parental Rights of the mother in 2003 as the mother had failed to maintain regular contact with DSS, failed to maintain stable living arrangements, failed to attend drug treatment regularly and had only visited with the child three times in 2003.

            At the termination hearing the Department of Social Services offered into evidence exhibits which included an affidavit from Child Support Enforcement, and certified copies of the mother’s substance abuse and medical treatment records. The mother argued in her appeal that these records should have been objected to by her counsel as they contained inadmissible hearsay. The Department of Social Services answered that the exhibits were admissible under the business records exception of the hearsay rule, to which the mother responded that the exhibits were not admissible as the proper foundation had not been laid.

The court in In re S.W. ultimately found that the proper foundation was laid. The records that DSS sought to admit were accompanied by affidavits from their respective records custodians. In the affidavits, the custodians certified the documents were true and correct copies of the records, that the records were made in the regular course of business, and that the records were made at or near the time the events were recorded. The court held that an affidavit from the custodian averring these facts is sufficient to satisfy the foundational requirements of Rule 803(6).

This means that so long as an affidavit of authenticity from the records custodian including this statutory language accompanies the proffered documents, a witness does not have to appear to lay the foundation and authenticate the records. As a general practice, when requesting records, it is advisable to send a proposed Affidavit of Authenticity to the records custodian so even if your witness fails to appear you can still introduce your vital records. In the next part of our series we will be discussing In re Smith, and the admission of DSS records under the business records exception.